In 1709 (or was it 1710?) the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Eleonora at eleonorarosati[at]gmail.com

Wednesday, 19 July 2017

People interested in the U.S. fair use
doctrine owe appropriation artist Richard Prince gratitude for providing
several interesting fair use cases to monitor and comment about.

Prince has been the defendant in several
high profile cases in the Second Circuit (see here
and here).
He famously won the Second Circuit Cariou
v. Prince case (see here),
where the Court of Appeals found that Prince’s use of Patrick Cariou’s
photographs to create his thirty paintings and collages featured in his Canal Zone exhibition was fair use, as
it was transformative.

Photographer Donald Graham filed a
copyright infringement suit against Prince in 2016 (see here
and here),
claiming that Prince’s use without permission of Graham’s Rastafarian Smoking a Joint photograph, to create an Untitled (Portrait) featured in Prince’s
New Portraits exhibition, was
copyright infringement. Prince claims it is fair use.

On July 18, U.S. District Judge Sidney H.
Stein from the Southern District of New York allowed
the case to go forward, as, while granting Prince’s request to dismiss
Graham’s demand for punitive damages, he denied Prince’s motion to dismiss the
case. The case is Graham v. Prince, 1:15-cv-10160.

Judge Stein noted that, because the fair
use defense is fact-related, discovery will be necessary to conduct the fair
use inquiry. Therefore, the case cannot be dismissed and will have to go
forward. Judge Stein quoted the Second Circuit in Cariou v. Prince, which stated that finding whether a particular
use is fair or not requires “an open-ended
and context-sensitive inquiry.”

Is this a dead end?

Prince used Graham’s work almost in its
entirety, when he printed and exhibited the original work as originally cropped
and posted on Instagram, without Graham’s permission, by another Instagram
user, then reposted by yet another user and finally reposted by Prince on his own
Instagram account. Prince added the nonsensical comment “ReCanal Zinian da lam jam,” followed by an emoji. Is this add-on
enough to make Prince’s work transformative enough to be found fair use?

Prince argued that the use was
transformative as it added new messages such as “a commentary on the power of social media to broadly disseminate
others’ work,” an endorsement of social media’s ability to “generate[ ]
discussion of art,” or a “condemnation
of the vanity of social media.”

Judge Stein was not convinced, finding “evident” that Prince’s work is not “so aesthetically different” from the
original work and thus not transformative enough. Untitled (Portrait) does not manifest “an entirely different aesthetic” from the original work, as
required under Cariou. Unlike the
works featured in the Canal Zone
exhibition, Untitled (Portrait) does not
render the original work, according to Judge Stein, “barely recognizable” as Princes works did in Cariou.Instead,

“[t]he primary image in both works is the photograph itself… Untitled
simply reproduces the entirety of Graham’s photograph – with some de minimis
cropping – in the frame of an Instagram post, along with a cryptic comment
written by Prince… There is no
question that, notwithstanding Prince’s additions, Graham’s unobstructed and
unaltered photograph is the dominant image in Untitled.”

Judge Stein concluded that “[b]ecause
Prince’s Untitled is not transformative as a matter of law, the Court cannot
determine on a motion to dismiss that a “reasonable viewer” would conclude that
Prince’s alterations imbued the original work “with new expression, meaning, or
message,” quoting the U.S. Supreme Court Campbell v. Acuff-Rose Music 1994 case.

“Given Prince’s use of essentially the entirety of Graham’s
photograph, defendants will not be able to establish that Untitled is a
transformative work without substantial evidentiary support.This evidence may include art criticism, such
as the articles accompanying defendants’ briefing, which the Court may not
consider in the context of this motion.”

Judge Stein called Cariou v. Prince a “prequel
to this action.” However, his fair use analysis does not bode well for
Prince, who may this time be found to have appropriated a bit too much. To be
continued…

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